Price Advertising, 55398-55402 [06-8041]

Agencies

• Office of the Secretary
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 71, Number 184 (Friday, September 22, 2006)]
[Proposed Rules]
[Pages 55398-55402]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-8041]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Office of the Secretary

14 CFR Part 399

[Docket No. OST-2005-23194]
RIN 2105-AD56


Price Advertising

AGENCY: Office of the Secretary (OST), U.S. Department of 
Transportation (DOT).

ACTION: Withdrawal of Notice of Proposed Rulemaking.

-----------------------------------------------------------------------

SUMMARY: This document withdraws the Notice of Proposed Rulemaking 
(NPRM) that sought comments on whether and, if so, how the Department 
should amend 14 CFR 399.84, its air-transportation price-advertising 
rule. As a matter of enforcement policy, the Department has long 
allowed limited exceptions to the strict terms of the rule. The NPRM 
called for comments on several options: Maintain the current practice 
with or without codifying all of its elements in the rule, enforce the 
rule as written, revise the rule to eliminate most or all requirements 
for airfare advertisements but to specify that consumers must be told 
the total price before any purchase is made, or eliminate the rule 
altogether. The Department has decided based on the comments that the 
public interest will best be served by maintaining the status quo.

ADDRESSES: You can get a copy of this document from the DOT public 
docket through the Internet at https://dms.dot.gov, docket number OST-
20005-23194 (click ``search,'' type just the last five digits, and 
click ``search'' again). If you do not have access to the Internet, you 
can get a copy of this document by United States mail from the Docket 
Management System, U.S. Department of Transportation, Room PL-401, 400 
Seventh Street, SW., Washington, DC 20590. Specify Docket OST-2005-
23194 and request a copy of the ``Withdrawal of Proposed Rulemaking.'' 
You can review the public docket in person in the Docket office between 
9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The 
Docket office is on the plaza level of the Department of 
Transportation. Finally, you can also get a copy of this document from 
the Federal Register Web site at https://www.gpo.gov.

FOR FURTHER INFORMATION CONTACT: Betsy L. Wolf, Senior Trial Attorney, 
Office of the Assistant General Counsel for Aviation Enforcement and 
Proceedings (C-70), U.S. Department of Transportation, 400 Seventh St. 
SW., Room 4116, Washington, DC 20590, tel: (202) 366-9342, fax: (202) 
366-7152, e-mail: Betsy.Wolf@DOT.GOV.

SUPPLEMENTARY INFORMATION:

Background

The Current Rule and Enforcement Policy

    The Department's price-advertising rule for air transportation, 14 
CFR 399.84 (adopted December 20, 1984), states that any advertisement 
of passenger air transportation which states a price that is not the 
entire price the consumer must pay is an unfair and deceptive practice 
in violation of 49 U.S.C. 41712. Section 41712 empowers the Department 
to ban unfair and deceptive practices and unfair methods of competition 
in air transportation and its sale. Congress modeled section 41712 on 
section 5 of the Federal Trade Commission (``FTC'') Act, 15 U.S.C. 45. 
The FTC Act, however, by its own terms, cannot be enforced against air 
carriers. Moreover, as the States are preempted from regulating price 
advertising by air carriers, 49 U.S.C. 41713, see Morales v. Trans 
World Airline, 504 U.S. 374, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992), 
only this Department can adopt consumer-protection regulations in this 
area.
    As a matter of enforcement discretion, the Office of Aviation 
Enforcement and Proceedings (``Enforcement Office''), has long allowed 
the following exceptions to the requirement that any advertised fare 
represent the consumer's total cost:
     Government-imposed taxes and fees that the carrier 
collects on a per-passenger basis may be excluded from the advertised 
fare, provided that they are not ad valorem, and provided that the 
advertisement shows the existence and amount of these charges clearly 
so that consumers can easily determine the total fare.
     If multiple destinations are advertised and not all entail 
the same government-imposed charges, the advertisement may state a 
maximum fee, a fee for each destination, or a range of fees. The word 
``approximately'' or a range of amounts may be used to account for 
minor fluctuations in currency exchange.
     Advertising ``two-for-one'' fares where the fare that must 
be bought is higher than the carrier's other fares in the same market 
is deceptive unless this fact is prominently and clearly disclosed.
     Advertisements of each-way fares that are available only 
when bought for round-trip travel must disclose the

[[Page 55399]]

round-trip purchase requirement clearly and conspicuously.
     In Internet fare advertisements (including banner, pop-up, 
and e-mail advertisements in addition to Web sites), the per-person 
government charges that may be listed separately may be disclosed by a 
prominent hyperlink, proximate to the listed fare, that takes the 
viewer to a display showing the nature and amount of these charges.
     In advertisements of ``free'' air transportation in 
conjunction with the purchase of one or more other tickets, the 
restrictions, fees, and other conditions that apply to the ``free'' 
transportation must be disclosed prominently and close to the offer, at 
a minimum through an asterisk or other symbol directing the reader's 
attention to the information elsewhere in the advertisement. This 
requirement applies to advertisements in all media: The internet, 
billboards, print media, television, and radio. The information must 
appear in easily-readable print (except, of course, in the case of 
radio announcements).
     Advertisements of fares that are higher if purchased by 
telephone or in person than over the Internet must prominently disclose 
that these fares are only available over the Internet. The 
advertisements must also disclose that tickets cost more than the 
advertised price if purchased by telephone or in person, and they may 
disclose the price increment. If the advertisements state a price 
differential, they may not characterize this amount as a ``service 
fee.''
     In any billboard advertisement that breaks out taxes and 
fees, a sum of these must be legible to drivers passing the billboard 
at the posted speed limit.
     In television advertisements, the sum of any taxes and 
fees that are broken out must be disclosed, either on screen or 
audially.
     Radio advertisements must include the sum of any taxes and 
fees that are broken out.
    The Enforcement Office has consistently declined to broaden these 
exceptions to allow carriers to break out any of their own cost 
elements, such as fuel surcharges, insurance surcharges, or service 
fees, from the fare.

The Notice of Proposed Rulemaking

    On December 14, 2005, following an informal request by the Air 
Transport Association that separate listing of fuel surcharges be 
permitted because of its air-carrier members' unprecedentedly high fuel 
costs, the Department issued a Notice of Proposed Rulemaking for the 
purpose of reexamining its longtime policy on price advertising (No. 
OST-2005-23194, RIN 2105-AD56, Price Advertising, 70 FR 73960 (December 
14, 2005) (``NPRM'')).
    The NPRM called for comments on four options:
    Option I A: Amend Sec.  399.84 to codify the Enforcement Office's 
long-standing policy.
    Option I B: Leave Sec.  399.84 as written but continue the 
enforcement policy.
    Option II: Change the long-standing enforcement policy to 
discontinue exceptions to the strict terms of Sec.  399.84.
    Option III A: Amend Sec.  399.84 to require simply that the total 
price of air transportation be disclosed before the consumer makes the 
purchase; pursue enforcement action under section 41712 when separate 
listing of cost elements is unfair or deceptive.
    Option III B: Amend Sec.  399.84 to require both that the total 
price of air transportation be disclosed before the consumer makes the 
purchase and that price advertisements set forth all elements of the 
fare so that consumers can add them together to determine the total 
price; pursue enforcement action under section 41712 when separate 
listing of cost elements is unfair or deceptive.
    Option IV: Rescind Sec.  399.84; pursue enforcement action under 
section 41712 when separate listing of cost elements is unfair or 
deceptive.

Comments

Tally of Comments by Group of Commenters

    The Department received well over 700 responsive comments on the 
NPRM, nearly all from individuals who are not travel professionals. The 
exceptions include 22 air carriers and tour operators, three travel 
agent associations, the National Association of Attorneys General, an 
individual who is a travel professional, and the Council of Better 
Business Bureaus.
    Of the approximately 700 individuals who commented on the NPRM, 
nearly 500 favor Option II. Over 120 favor Option I, with only three 
specifying a preference for Option I A, and nearly 100 others deem 
either Option I or Option II to be acceptable, although most prefer the 
latter. Options III A and III B drew support from two and three 
individuals, respectively. No individual supports Option IV.
    Of the 22 air carriers and tour operators that filed comments, 11 
support Option I, with four (Air Pacific, Ltd., Apple Vacations, USA 
3000, and Qantas Airways Ltd.) favoring Option I A, five (Alaska 
Airlines, Inc., Southwest Airlines Co., Singapore Airlines Ltd., Air 
New Zealand Ltd., and Midwest Airlines, Inc.) favoring Option I B, and 
two (Jet Blue Airways Corporation and Olympic Airways S.A.) expressing 
no preference. None of these commenters supports Option II. Option III 
drew support from four, split evenly between Option III A (Northwest 
Airlines, Inc., and Continental Airlines, Inc.) and Option III B 
(Cathay Pacific Airways Ltd. and Air Tahiti Nui). Option IV, too, drew 
support from four (Delta Air Lines, Inc., American Airlines, Inc., 
United Air Lines, Inc., and Deutsche Lufthansa AG). The other three 
(British Airways PLC, Aer Lingus Limited, and US Airways Group, Inc., 
which represents US Airways, Inc., America West Airlines, Inc., PSA 
Airlines, Inc., and Piedmont Airlines, Inc.) suggest hybrid approaches.
    As for the remaining commenters, two (the American Society of 
Travel Agents, Inc., and the Interactive Travel Services Association, 
which represents several major Internet travel agencies) support Option 
I A, one (the Council of Better Business Bureaus) supports Option I B, 
and three (the United States Travel Agent Registry, Edward Hasbrouck, 
and the National Association of Attorneys General) support Option II.

Summary of Comments by Group of Commenters

    The individuals who favor Option I make the following arguments: 
There is value in knowing how much of what one pays for air 
transportation is going to the carrier and how much to government 
entities; airfares are confusing enough as is, and weakening or 
removing the rule might well harm consumers by permitting the 
advertisement of fares that are divorced from reality; carriers should 
not have to include government-imposed fees in their advertised fares 
since they have no control over them; conversely, because cost elements 
such as fuel surcharges are susceptible to the carriers' control, when 
these amounts must be included in advertised airfares, the carriers 
have a greater incentive to negotiate for lower costs in order to stay 
competitive; if consumers do not learn the full price of a ticket until 
the end of the purchase process, they will be unwilling or even unable 
to spend the time required to compare fares and will thus end up paying 
too much for air travel.
    The individuals who favor Option II make the following arguments: 
Under the current regime, fare advertisements are confusing and 
deceptive to the point of amounting to ``bait and switch'' tactics; 
enforcing the rule as written would maximize the transparency of

[[Page 55400]]

prices, the ease of comparing fares, and the efficiency of the market; 
weakening or removing the rule could encourage carriers to pad fares 
with additional surcharges and fees, thereby increasing confusion and 
deception and frustrating competition; consumers expect cost elements 
such as fuel to be included in the price of a ticket; the Department 
could not protect consumers' interests via case-by-case enforcement 
under section 41712 (i.e., without Sec.  399.84) absent, in the words 
of one commenter, ``an exponential increase in funds, and in staff 
hiring authority, for the Enforcement Office.''
    Of the five individuals who favor Option III, the two who favor 
Option III A did not say why. One of the three who favor Option III B 
reasons that this approach strikes the best balance between the need 
for regulations to protect consumers (who can and should be expected to 
read advertisements carefully) and the need to avoid infringing on 
sellers' right to use marketing innovations.
    The air carriers and tour operators that favor Option I make the 
following arguments: Requiring advertised fares to include all costs 
over which carriers have control but allowing government-imposed 
charges to be listed separately promotes direct competition on fares; 
this approach is consistent with the laws of other countries, which 
makes compliance easier for carriers; this approach has worked well for 
both consumers and sellers; Option II would create marketing 
difficulties; Option III B would frustrate true fare competition and 
make it harder for consumers to calculate the total fare, as would 
Options III A and IV to an even greater extent; this problem is 
exacerbated by the inability of the States or the FTC to regulate 
advertising by air carriers and the Department's lack of resources to 
monitor carriers' advertisements closely and mount individual 
challenges whenever carrier-imposed surcharges might appear to run 
afoul of section 41712. Some of these commenters seek permission to 
lump government-imposed charges together as one sum. Those that support 
Option I A argue that having a rule that is not enforced as written is 
not consistent with principles of good government. Those that support 
Option I B argue that the policy is already well known to industry 
practitioners, that keeping it uncodified will allow the Department to 
address evolving practices as quickly as possible, and that codifying 
it could retard legitimate marketing developments that exploit evolving 
technologies.
    The carriers that favor Option III A make the following arguments: 
Once the consumer knows the total price of an itinerary, he or she has 
all the information necessary for deciding whether to buy or not and 
for comparing that price with others, and beyond this sellers should be 
free to configure their advertisements as they see fit; the prospect of 
enforcement action under section 41712 will deter bait-and-switch 
tactics; Sec.  399.84 burdens sellers of air transportation unduly, as 
sellers in other industries with high taxes and government-imposed fees 
(e.g., hotels and rental-car agencies) are not required to disclose 
these amounts to the consumer before the sale is made.
    The carriers that favor Option III B argue that it strikes the 
appropriate balance between carriers' wanting maximum flexibility to 
respond to market forces and consumers' wanting to obtain adequate fare 
information efficiently.
    The carriers that favor Option IV make the following arguments: As 
a matter of principle, a price-advertising regulation is inappropriate 
for a deregulated air-transportation industry; Sec.  399.84 and the 
enforcement policy bar some types of price advertising that are not 
deceptive and should thus be permitted; the status quo bars carriers 
from innovation in their fare offerings; the regulation as enforced 
imposes costs and practical difficulties that outweigh any benefits 
that detailed tax disclosure might provide; ``bait and switch'' and 
other modes of deceptive advertising are not likely to follow a removal 
of the rule because such tactics are contrary to the carriers' best 
interests, and in any event the Department can contain abusive 
practices through enforcement action; enforcement action will not 
become more cumbersome, as the Department must already prove violations 
on a case-by-case basis; Options III A and IV are functionally 
identical, as it would be illegal to consummate a sale without first 
disclosing the full price; the Department essentially rejected Option 
II over 20 years ago, and nothing in the NPRM suggests that its 
rationale for doing so has become any less valid; consumers know that 
advertised prices do not include taxes.
    Of the carriers that suggest hybrid approaches, British Airways 
supports a hybrid of Options I and III, arguing as follows in support 
of its position: The rise of the Internet has increased consumer 
sophistication to the point of rendering Sec.  399.84 and the 
enforcement policy obsolete; some regulation nevertheless remains 
appropriate due to consumers' long-time expectations, since the 
existence of a rule curbs even marginal abuses and since uniform 
standards are superior to the multiplicity of rules that state and 
local intervention might foster; the Department should therefore 
require that consumers be informed of all elements of the total price 
early in the booking process but not specifically on the first screen 
that states a fare component, and it should drop both the requirements 
for hyperlinks in banner and popup advertisements and the detailed 
requirements for television and radio advertisements, as these are not 
effective.
    Aer Lingus argues for an end to treating fare displays on carriers' 
Web sites as fare advertising, leaving only paid fare advertising in 
conventional advertising media subject to the rule as currently 
enforced. At most, it contends, carriers' Web sites should be subject 
to the equivalent of Option III A.
    US Airways Group favors what it calls a modified version of Option 
III B but is actually closer to Option I A: Continuing the ban on 
separate listing of carrier-imposed surcharges, permitting carriers to 
advertise all government-imposed taxes, fees, and surcharges as a 
single amount or a single range of amounts, and ending the requirement 
of detailed disclosures in media that by nature are fleeting (such as 
radio, billboards, jumbo-trons, and movie screens), as in practice 
these disclosures are unintelligible.
    The remaining commenters include three travel agent associations, 
one travel professional, the National Association of Attorneys General, 
and the Council of Better Business Bureaus. The two travel agent 
associations that support Option I A make the following arguments: The 
status quo works; developments in electronic communication have not 
eliminated the dangers of misleading and deceptive advertisements; 
weakening or eliminating the rule would invite abuse and chaos or, at 
the other extreme, inconsistent regulation by the FTC and one or more 
States; codifying the enforcement policy will ensure that sellers and 
consumers alike know what to expect; future changes to the policy 
should be made via notice-and-comment rulemaking procedures, and 
enforcement action should only be taken based on changes adopted in 
this manner; Option II would impose substantial burdens on sellers; 
Options III A and IV would invite deceptive advertisements, and even 
Option III B would make it harder for consumers to compare fares.
    The third travel agent association, the travel professional, and 
the National Association of Attorneys General make

[[Page 55401]]

the following arguments in support of Option II: Under the status quo, 
consumers are all too frequently misled as to the total cost of air 
transportation; most Internet sites do not disclose the total price 
until the end of the process, making fare comparison difficult for both 
consumers and travel agents; travel agents bear the costly burden of 
explaining to frustrated consumers why the actual fare is higher than 
the fare advertised, which would not be the case if Sec.  399.84 were 
enforced as written; Options III and IV would exacerbate this burden; 
even sophisticated travelers complain that fare advertisements mislead 
them; the harm to consumers from the Department's enforcement policy is 
increasing as government-imposed charges increase; in principle, the 
availability of information on the Internet should not lessen the level 
of protection that consumers receive; Option II would not harm 
competition among air carriers, as the same government-imposed charges 
apply to all of them; consumers do not benefit from the omission of 
government-imposed charges from advertised fares, and in any event, 
sellers would be free under Option II to disclose them in addition to 
the total price; Options III and IV should not be adopted because 
consumers expect advertised fares to include all of the carrier's cost 
elements; case-by-case enforcement under section 41712 alone would be 
significantly more costly and time-consuming than enforcement action 
for violation of Sec.  399.84. Additionally, the National Association 
of Attorneys General says that were its members not preempted from 
enforcing their States' consumer-protection laws against air carriers, 
they would be enforcing a standard equivalent to Option II, as they 
have done in other industries.
    The Council of Better Business Bureaus is the umbrella organization 
for 130 local Better Business Bureaus in North America and also numbers 
some 250 U.S.-based corporations among its members. The Council states 
that its members attempt to ``foster an ethical marketplace that is 
fair to both consumers and businesses.'' It favors Option I B and makes 
the following arguments in support of its position: The enforcement 
policy has worked well for 20 years, protecting consumers from 
deceptive advertising and promoting price competition; Options III A 
and IV, which, since the full price must always be disclosed before a 
purchase is transacted, are functionally equivalent, would invite 
``come-on'' ads that grossly understate fares and deceive consumers and 
garner the advertisers an unfair advantage over their competitors; the 
Federal Trade Commission considers a representation, omission, or 
practice concerning a price claim to be deceptive if it is misleading 
to reasonable consumers under the circumstances, but the Commission is 
barred from regulating advertising by air carriers, as are the States; 
the competitive marketplace determines fares, not how they are 
advertised, and competition requires the free flow of information 
honestly disclosed by competitors; allowing carriers to advertise fares 
that exclude some of their own costs would make it harder for carriers 
with lower costs to compete and for reasonable consumers to compare 
fare offerings; nothing has changed since the adoption of Sec.  399.84 
to make omission of airline-imposed charges and concealment of 
government-imposed charges less deceptive; Option III B would allow the 
advertisement of unrealistically low fares that deceive consumers; as a 
practical matter, weakening or eliminating Sec.  399.84 would leave 
consumers worse off than if the rule had never been adopted, because 
the change would be seen as an invitation to do what has long been 
barred; in the case of Internet advertising, since the consumer must 
frequently go through multiple pages or screens and sometimes even 
provide personal information before getting to the page where the 
purchase is made, a consumer checking prices for purposes of comparison 
might well stop short of finding the final price; maintaining the 
status quo would best serve the interests of consumers without unduly 
burdening advertisers or hampering the Department's enforcement 
efforts; codifying the exceptions to Sec.  399.84 could significantly 
hamper enforcement by limiting what might be considered deceptive or 
unfair; Option II would burden advertisers and could increase both the 
complexity of advertisements and consumer confusion.

Withdrawal

    Having duly considered all comments, we have concluded that the 
public interest will best be served by our maintaining the status quo--
i.e., keeping Sec.  399.84 as it is and allowing the Enforcement Office 
to exercise its prosecutorial discretion to permit exceptions to the 
rule as circumstances may warrant (Option I B). We are therefore 
withdrawing the Notice of Proposed Rulemaking.
    We find the reasons for maintaining the status quo to be most 
compelling. As enforced, Sec.  399.84 protects consumers, facilitates 
price comparison, fosters fare competition, and affords sellers an 
appropriate degree of freedom to innovate. We have reviewed the Federal 
Trade Commission's written policies on pricing activities, including 
its guidelines for activities on the Internet, and have concluded that 
our enforcement policy produces approximately the same balance between 
consumers' and sellers' needs as that which would result if air 
carriers were subject to the Commission's jurisdiction. It would 
therefore be poor public policy to weaken or abolish our rule only to 
have to work our way back to the present equilibrium, case by slow and 
costly case, via enforcement under section 41712. Moreover, given the 
Enforcement Office's limited resources, to rely solely on section 41712 
for effective fare-advertising enforcement would be unrealistic.
    The supporters of Options III A and IV (which, we agree, are 
functionally equivalent) have not shown compelling reasons for 
eliminating a rule that has worked well for over 20 years. The argument 
that sellers in other industries with high taxes and government-imposed 
fees, such as hotels and rental-car agencies, are not required by 
Federal regulation to disclose these amounts to the consumer before a 
sale is made ignores the fact that both the Federal Trade Commission 
and the States may regulate advertising in these other industries. In 
fact, as the Council of Better Business Bureaus points out, the 
Commission has set standards for price advertising similar in kind to 
our rule and enforcement policy but by means other than adopting 
regulations. The Commission's Web site offers extensive advertising 
guidance to businesses; see https://www.ftc.gov/bcp/guides/guides.htm. 
The Council also points out that advertisers in industries other than 
air transportation face a host of state statutes and regulations. It 
reports that in 1989, the National Association of Attorneys General 
adopted enforcement guidelines regarding the application of these laws 
to car-rental companies, including the following:

    Any surcharge or fee that consumers must generally pay at any 
location in order to obtain or operate a rental vehicle must be 
included in the total advertised price of the rental.

    The Council suggests that this guideline may account for the trend 
we have observed among rental-car Web sites, noted in the NPRM, ``to 
give total prices for rental cars when giving quotes,'' 70 FR at 73964.
    Those carriers that assert that under the status quo they are 
barred from innovating in their fare offerings and

[[Page 55402]]

advertising neglected to provide any example of putative innovations. 
The argument that the regulation as enforced imposes costs and 
practical difficulties that outweigh the benefits of detailed tax 
disclosure ignores the fact that the policy does not require that 
government-imposed fees be listed separately from the fare but merely 
permits this. The argument that enforcement action under section 41712 
alone would not be any more cumbersome than it is now, since the 
Department must already prove violations on a case-by-case basis, 
ignores the considerable difference between having to prove only that 
conduct is prohibited by Sec.  399.84, as interpreted, and having to 
prove that conduct has violated section 41712, which requires a showing 
of actual or likely consumer harm. With Sec.  399.84 in place, any act 
that it prohibits is a per se violation of section 41712. The argument 
that consumers know that advertised prices do not include taxes ignores 
the vast difference between the sales tax applicable to most goods and 
services and the much higher taxes and fees--both absolutely and as a 
percentage of the base price--applicable to airfares. Aer Lingus does 
not explain why it believes that listings on carriers' Web sites should 
not be considered advertisements, nor does it specify how it believes 
Internet travel agencies' fare displays should be treated.
    The supporters of Option III B have also not persuaded us to dilute 
Sec.  399.84. We agree with the Council of Better Business Bureaus that 
sellers could advertise deceptively under this option, for example, by 
falsely implying that a carrier's own surcharges were government-
imposed or by failing to meet the Federal Trade Commission's standards 
for prominence, readability, and clarity. As in the case of Options III 
A and IV, moreover, enforcement would be far more burdensome than under 
the status quo.
    Similarly, the overwhelming support among individuals for enforcing 
Sec.  399.84 as written notwithstanding, the comments fail to establish 
a rationale for undoing over 20 years of permitting exceptions to the 
rule's strict terms as a matter of enforcement policy. Strict 
enforcement of Sec.  399.84 would still create marketing difficulties 
for sellers without necessarily making prices more transparent to 
consumers. Option II's strong support from consumers does, however, 
serve to fortify the case against eliminating or diluting the rule and 
enforcement policy.
    We are maintaining the status quo and withdrawing the NPRM rather 
than codifying the current exceptions to Sec.  399.84 allowed by the 
Enforcement Office. We do not think that codification is necessary to 
make the enforcement policy transparent and available. As we observed 
in the NPRM, sellers and lawyers practicing in this industry are 
already familiar with the policy and both consumers and newcomers to 
the industry can find the details of the policy on the Department's Web 
site at https://airconsumer.ost.dot.gov/rules/guidance.htm. 70 FR at 
73963. As we also observed in the NPRM, given that enforcement is by 
nature discretionary, by not codifying the exceptions to Sec.  399.84, 
we are retaining the flexibility within the Enforcement Office to 
continue refining its enforcement policy without the delays and costs 
that rulemaking would entail, id.
    Two clarifications are in order. First, several commenters argue 
for leeway to lump all of the government fees and charges that may be 
broken out from the fare together as one sum rather than being required 
to list them individually. In practice, except for ad valorem taxes and 
the September 11th Security Fee, which under the Department of Homeland 
Security's regulations must be disclosed separately, the Enforcement 
Office already allows this. Second, several commenters argue that the 
requirements for disclosure of government-imposed charges in billboard, 
television, and radio advertisements should be dropped because as a 
practical matter these disclosures are invariably unintelligible. The 
fact remains, however, that failure to disclose these charges 
effectively renders an advertisement deceptive. Sellers always have the 
option of including these charges in the fares advertised (using a 
range of prices or using the word ``from'' with the minimum price if 
need be).
    Accordingly, for the reasons set forth above, we are withdrawing 
the NPRM.

    Issued this day of September 18, 2006, at Washington, DC, under 
authority delegated by 49 CFR 1.56a.
Michael W. Reynolds,
Acting Assistant Secretary for Aviation and International Affairs.
[FR Doc. 06-8041 Filed 9-21-06; 8:45 am]
BILLING CODE 4910-9X-P